On Point blog, page 8 of 50
Confrontation: Forfeiture Doctrine – Witness Unavailability; Authentication – Telephone Recording; Appellate Jurisdiction
State v. Scottie L. Baldwin, 2010 WI App 162 (recommended for publication); for Baldwin: Robert E. Haney; (principal briefs not posted on-line)
The trial judge’s findings, though made prior to Giles v. California, 128 S.Ct. 2678 (2008), satisfied the test imposed by that case, that forfeiture of the right to confrontation requires intent to prevent the witness from testifying.
¶39 Therefore,
State v. Esteban M. Gonzalez, 2010 WI App 104, review granted 10/27/10
prior post: here; background summary by court: here
Issues (from Table of Cases):
Whether a pattern jury instruction confused or mislead a jury such that the instructions violated a defendant’s due process rights.
Whether a trial court erred in its handling of a jury’s questions during deliberations.
Whether particular evidence constituted substantial facts sufficient to corroborate the defendant’s alleged statements under the corroboration rule (See State v.
State v. Charles Lamar, 2009 WI App 133, review granted 10/27/10
Prior post: here; background summary by court: here
Issue (from Table of Cases):
Whether, at resentencing, a defendant would be entitled to credit on a new sentence for time spent confined on a vacated sentence, which was served concurrently with another non-vacated sentence, when the new sentence is imposed consecutively to all other sentences (See Wis. Stat. § 973.04).
OWI – Refusal
State v. Robert J. Ruggles, 2010AP1587, District 2, 11/3/10
court of appeals decision (1-judge, not for publication); for Ruggles: Robert C. Raymond; BiC; Resp.
A driver doesn’t have a constitutional right to be informed that a blood draw could be performed without his consent.
¶9 It is well established that there is no constitutional right to refuse a request for a chemical test.
Collateral Attack – Serial Litigation Bar
State v. Paul Dwayne Westmoreland, 2009AP2288, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Brief
¶14 Escalona-Naranjo requires that a defendant raise all grounds for postconviction relief in his or her first postconviction motion or in the defendant’s direct appeal. See id., 185 Wis. 2d at 185. A defendant may not pursue claims in a subsequent appeal that could have been raised in an earlier postconviction motion or direct appeal unless the defendant provides a “‘sufficient reason’” for not raising the claims previously.
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Custodial Interrogation: Request for Counsel – Waiver of Rights – Invocation of Counsel – Assertion of Right to Silence
State v. Patrick E. Hampton, 2010 WI App 169 (recommended for publication); for Hampton: Michael S. Holzman; BiC; Resp.; Reply
Custodial Interrogation – Request for Counsel
To invoke the 5th amendment right to counsel during custodial interrogation, the suspect must assert the right unambiguously, something Hampton did not do.
¶30 Hampton alleges that detectives ignored him and continued to inappropriately question him five minutes into the July 20 interview,
Sentencing – Burden to Show Inaccurate Information
State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10
court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply
¶1 Jason Walker was sentenced after revocation of his probation. The sentencing court considered probation violations that Walker denied committing. Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them.
Reasonable Suspicion – Traffic Stop
Outagamie County v. Daniel C. Torreano, 2010AP978, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Torreano: Chad A. Lanning; BiC; Resp.; Reply
¶8 While this case also presents a relatively close call, we agree with the circuit court that the stop was supported by reasonable suspicion. That Torreano was observed driving in the early morning hours, within forty-five minutes of “bar time,” is a highly significant factor.
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,